SHELBY v. BURNS

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Docket Number

No. 27435.

Attorney(S)

J.C. Walker and Watkins, Watkins Eager, for appellant. The alleged list of lands struck off to the city of Gulfport for 1912 taxes is insufficient and amounts to no list because it is not signed, certified to, authenticated and has no certificate, it being our contention that an unsigned certificate is no certificate at all. The assessment roll of 1912 was never legally approved by the mayor and board of aldermen of the city of Gulfport for the reason that when said board met on October 25, 1912, and there was no quorum present it had no authority to take a recess from day to day thereafter for three days, but the only thing it could do was to call a special meeting. The mere fact that the certificate was written in the handwriting of Mr. Jordan, the witness, does not make it a certificate any more than if it had been printed and pasted in the book. It was not signed, either by the clerk or Mr. Jordan, his alleged deputy. And even if it had been signed by Mr. Jordan it would not have been sufficient because there was no such officer as a deputy clerk and tax collector. And going a step further, even if there had been such an officer he would not have legal authority to make this certificate any more than a deputy sheriff and tax collector would have had to make the certificate to a county sale under the same circumstances. Ferrill v. Dickerson, 63 Miss. 210; Mayson v. Banks, 59 Miss. 447; Houston Bros. v. Lenhart, 136 Miss. 841, 101 So. 289; Clymer v. Cameron, 55 Miss. 593; Weathersby v. Thomas, 57 Miss. 296; Ferrill v. Dickerson, 63 Miss. 210; Williams v. Collins, 114 Miss. 882, 75 So. 689; Bennet v. Chaffe, 69 Miss. 281, 13 So. 731; Railroad Co. v. McLarty, 71 Miss. 755, 15 So. 928; French v. Ladd, 57 Miss. 679; Gibbs v. Dortch, 62 Miss. 671. As shown by the minutes of the board it met on October 21, 1912, for the purpose of equalizing the assessments for the year 1912, and the minutes recite that the board discussed matters pertaining to assessments and valuations and then recessed until the following day. On the following day, October 22, 1912, the board met pursuant to said recess but made no orders with reference to the assessment, and then recessed until the following day. On the following day, October 23, 1912, the minutes recite that the board met pursuant to the recess of the previous day, that a quorum was not present, and a recess was taken until the following day. The next day October 24, a quorum was present but the assessments were not considered. On the 25th a quorum was not present and a recess taken. On the 26th a quorum was not present and a recess taken. The minutes of the 27th are not in the record. On the 28th no quorum was present. On the 29th no quorum was present. On the 30th a quorum was present but no action taken with reference to the assessment rolls. On the 31st a quorum was present and the board passed the orders with reference to the assessments. It is our contention that when the board met on the 23rd day of October, 1912, for the purpose of approving and equalizing the 1912 assessments, pursuant to a recess of the previous day, and a quorum was not present, it was without power and legal authority to thereafter take any action with reference to the assessment rolls. In other words it could not take a recess, and thereafter consider the rolls. P.R. Haydon, for appellee. In Gibbs v. Dortch, 62 Miss. 671, this court said, "the certificate of a list of lands sold to the state is not defective because the name of the tax collector is in the body of the certificate and not subscribed thereto, or because the same was written by his deputy instead of the tax collector if written under his directions." In Alvis v. Hicks, 116 So. 613, this court held that it was immaterial whether the city clerk certified to the list of lands sold to the city at the top or bottom. Appellant says that the board had no power to adjourn a meeting when less than a quorum were present. In the first place he fails to show where any change was made in his assessment at the meeting of the board of commissioners. The roll was complete when copied from the county roll and if no changes were made he could not be injured. But I submit that the board had the right to adjourn to another day when a quorum is not present. Although there is some authority to the contrary, ordinarily a minority of the city council less than a quorum, may lawfully adjourn to another day. In any event the legality of an an adjourned meeting of a city council by less than a quorum to a certain time, cannot be questioned by the courts, where at the adjourned meeting all members were present and participated in the transaction of business. 43 C.J. 498-499.

Judges

SMITH, C.J.

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SHELBY v. BURNS. Corpus Juris-Cyc References: Parliamentary Law, 46CJ, section 10, p. 1379, n. 76; Taxation, 37Cyc, p. 1061, n. 66; p. 1356, n. 93.

1. TAXATION. Failure of tax collector to attach signature to certificate in which name appeared in body thereof was immaterial.

Failure of tax collector to attach his signature to certificate attached to list of lands sold to city for taxes was immaterial, in view of fact that his name appeared in body of certificate.

2. TAXATION. Certificate attached to tax list written by another at direction of tax collector was valid.

Certificate attached to list of lands sold to city for taxes written by another at direction of tax collector was valid, in that a ministerial act of such character, performed by another with consent and approbation of officer charged with duty of performing it, is valid.

3. TAXATION. Assessment roll in office of city tax collector, in handwriting of city clerk and collector, was sufficiently identified without certificate ( Hemingway's Code 1927, sections 1715, 7004, 7011).

Assessment roll in office of city tax collector, in handwriting of city clerk and tax collector, made in accordance with Code 1906, section 3421 (Laws 1914, chapter 118; Hemingway's Code 1927, section 7004), was sufficiently identified, without certificate or identification by such clerk, regardless of Code 1906, sections 1983, 3427 (Hemingway's Code 1927, sections 1715 and 7011).

4. PARLIAMENTARY LAW. Less than quorum of deliberative assembly may adjourn, or take recess, though without power to transact business.

Though less than a quorum of a deliberative assembly is without power to transact business, nevertheless less than a quorum may adjourn, or take recess, to a later time, in accordance with general parliamentary rule.

SMITH, C.J.

This is an appeal from a decree confirming the appellee's tax title to land claimed by him under a sale for taxes. A former appeal herein is reported in 148 Miss. 206, 114 So. 349. The case was tried on bill, answer, and proof. The appellee, in support of his case, introduced in evidence a list of lands sold for taxes to the city of Gulfport and connected himself therewith by deed from that city. Attached to this list of lands sold to the city for taxes is a certificate, reading as follows:

"I, N.D. Goodwin, tax collector of the city of Gulfport, Mississippi, hereby certify that the preceding pages 45 to 60, inclusive, is a true and correct list of the property sold by me to the city of Gulfport, for the taxes due thereon for the fiscal year 1912.

"Signed this the 10th day of April, 1913."

The tax collector failed to attach his signature thereto, but this fact is immaterial, as his name appears in the body of the certificate. Gibbs v. Dortch, 62 Miss. 671. The certificate was not written by the tax collector, but was written at his direction by another, who testified that he was the tax collector's deputy. Whether the law provides for a deputy city tax collector or not, as to which we express no opinion, the certificate is valid, for the reason that a ministerial act of this character, performed by another with the consent and approbation of the officer charged with the duty of performing it, is valid. Gamble v. Trahen, 3 How. 32; Jackson v. State, 55 Miss. 530; Gibbs v. Dortch, 62 Miss. 671; Wimberly v. Boland, 72 Miss. 241, 16 So. 905.

The only assessment roll in the office of the city tax collector is in the handwriting of the then city clerk and tax collector, but it contains no certificate or identification by him. It is styled "Assessment of Real Property, 1912, for City of Gulfport," and was the roll used by the tax collector for the collection of taxes when the land here in question was sold for the nonpayment of the taxes due thereon. Section 3421, Code of 1906 (chapter 118, Laws of 1914; section 7004, Hemingway's 1927 Code), requires the assessment of municipal property to be made by the clerk or city tax collector "by copying, from the county assessment rolls, that portion thereof which embraces property or persons within the corporate limits. The copy may be made at any time after the assessment rolls are approved, and all changes in the county assessment thereafter made shall likewise be made in the copy; said copy shall be placed in the hands of the municipal tax collector, and be his warrant for the collection of municipal taxes." Neither that statute nor any other that has been called to our attention requires the clerk or tax collector to certify to the roll, or to identify it in any other way.

Leaving out of view section 1983, Code of 1906 (Hemingway's 1927 Code, section 1715), and section 3427, Code of 1906 (Hemingway's 1927 Code, section 7011), under which the certified list of lands sold to the city for taxes due thereon is " prima-facie evidence that the assessment and sale of the land were legal and valid," we are of the opinion that the assessment roll was sufficiently identified.

On October 21, 1912, the board of aldermen of the city of Gulfport convened for the purpose of equalizing assessments, and the minutes recite an adjournment to the following day without the assessment roll being approved. The same fact occurred on the day following. On October 23d the minutes recite the absence of a quorum and an adjournment until the next day. On October 24th a quorum appeared, but the meeting was adjourned to the next day, without the roll being approved. On the 25th the minutes recite the absence of a quorum, and an adjournment until the next day. The minutes contain the same recital for several days thereafter. On the 30th a quorum appeared, and the roll was approved.

The appellant's contention here is that, when a quorum failed to appear, the session of the board of aldermen necessarily came to a close, for the reason that less than a quorum thereof was without power to adjourn to a later day. Assuming, but not deciding, as no statute seems to specifically provide therefor, that it was necessary for the board of aldermen to approve the assessment roll, the approval here was valid, for the reason that, while less than a quorum of a deliberative assembly is without power to transact business, less than a quorum thereof may adjourn, or take a recess, to a later time. It is true that no statute here so provides, but such is the general parliamentary rule. Roberts Rules of Order, Revised, for Deliberative Assemblies, section 64; 43 C.J., section 757, p. 498.

Affirmed.

SHELBY v. BURNS. Corpus Juris-Cyc References: Parliamentary Law, 46CJ, section 10, p. 1379, n. 76; Taxation, 37Cyc, p. 1061, n. 66; p. 1356, n. 93.

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